Friday, April 19, 2024

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Breath Test Discovery Fight in West Virginia

Currently pending before the Supreme Court of Appeals of West Virginia is the matter of Pamela Games-Neely v JoAnne Overington (Docket No.: 11-1648). I am lead counsel for the Respondent. The central issue before the high court of West Virginia is whether or not a citizen charged with driving under the influence may obtain through discovery request the download data, and accompanying maintenance records and associated operation/training manuals, from the specific Intoximeter EC/IR II breath machine used on the accused citizen the night of his or her arrest.

At present, the only “breath test” discovery a citizen accused in West Virginia receives is the standard four (4) page DUI Information Sheets, the Implied Consent form and a printer ticket copy that has “successful test” listed at the bottom. That’s it. I liken it to being told by a physician that you have terminal cancer. You inquire of the doctor how she arrived at that conclusion. She points over to a laboratory machine, much like a breath machine, and says, “because that machine said you do.” You respond, “Well, can we examine that machine to make sure that this is an accurate test result?” The treating physician responds, “No, you just have to trust us. It’s working fine and you have terminal cancer.” Now, who is going to accept this? Exactly.  Sadly in West Virginia, this is exactly what citizens are being told by our state government when the accused citizen wishes to examine the machine the government is relying upon to prove DUI cancer (so to speak).

Below, is a condensed version of an affidavit by renowned breath test scientist and expert, Mary M. McMurray, out of Madison, Wisconsin, explaining what “download data” is and why it is so important to obtain this information, and that of all associated maintenance records and manuals, in order to conduct a meaningful, forensic examination of the reliability of an alleged breath test result. Mrs. McMurray has graciously offered me countless hours of support and effort in this on-going fight to provide each and every citizen accused of driving under the influence in West Virginia meaningful access to critical breath test discovery.

She explains its importance as follows:

The accuracy and reliability of any given test cannot be determined solely on the face value of a test card or printer ticket. A test card may have certain information recorded on it that gives the appearance that the testing device is accurate and reliable when the operational history of the given testing device may show that the device has a very low level of accuracy and poor reliability. In conducting a complete evaluation of the scientific accuracy and reliability of an evidential breath alcohol device, the best source of information pertaining to the operation of that device is the database collected by the device showing fuel cell parameters, blow data and calibration and verification data. In conducting a complete evaluation of the scientific accuracy and reliability of an evidential breath alcohol device, any and all associated hard copy documents pertaining to the operation and maintenance of that device are equally important. In conducting a complete evaluation of the scientific accuracy and reliability of an evidential breath alcohol device, any and all associated maintenance and operational manuals pertaining to the operation and maintenance of that device are equally important.

The computer portion of the EC/IR II is fully capable of storing information from each and every test attempted/conducted on the device. The data that is contained within the database should be unbiased data as every test or operation of the device, completed or not, would be recorded and stored. The database contains information on the fuel cell at the time of each sampling that can only be found in the downloaded data. The database also contains testing information pertinent to the test subjects sample, such as length of blow and volume of the breath sample delivered that is not always provided on the test record. The database program sold by manufacturer of the EC/IR II is called IntoxNet. The downloaded data can be utilized as a diagnostic and troubleshooting tool by forensic agencies (West Virginia State Police Toxicology Unit) as a part of their Quality Assurance (QA) program. Both operator and instrumental issues can be identified with the use of downloaded data. Instrumental problems can often be identified before the problems become an issue of instrumental accuracy and reliability. To fairly evaluate an instrument’s performance it is necessary to have data from a year prior and subsequent when able. This wide time frame allows a thorough review of how the instrument was functioning at a point in time pre or post the instant test to assess whether or not anything has changed within the instrument’s functionality. Issues such as calibration stability and/or drift can only be evaluated if there is sufficient verification data, thus the need for a wider window of operational data. Smaller windows of time bracketing a given test can hide problems that are intermittent in nature or matters of calibration drift.

The instrument data files contain several categories of information such as error or status codes, diagnostic tests, accuracy checks and maintenance checks, calibrations, and fuel cell analysis. Every test, regardless of the test mode running, is documented within the database and retrievable via the download software. The original purpose of collecting and storing information for the operation of the breath-alcohol analyzer was to aid technicians in troubleshooting and diagnosing problems or issues and to assist the agencies in their administrative functions and reporting. The data is easily exported into a number of windows programs for report generating and data analysis. The database, in its entirety, provides a complete picture of all operation of the equipment. The training materials that the state provides to the operators is relevant as it gives the information pertaining to normal operation and protocols to follow as well as protocols for when various messages are triggered during testing. Each state has the manufacturer customize the messages and sequence protocols for their testing. The exact language for various messages will vary from state to state as well as from the generic language the manufacturer uses.

The training and operation manuals, identifying how the State of West Virginia has the testing sequences configured, what the various messages are and what actions are required of the operators in various testing situations allow, in total, a defendant, his counsel and that of a breath test scientist a chance to familiarize themselves with program specifics and requirements under West Virginia testing protocol. Such information is also useful to save time in trial and to allow more precise terminology specific for West Virginia’s breath alcohol program. The manuals for the maintenance and operation of the EC/IR II that the breath test program staff and technicians have are customized for each state by the manufacturer. The manufacturer manuals, or those associated maintenance / operation manuals created internally by the West Virginia State Breath Alcohol Program, are not for sale to the public. These manuals are only obtainable from the state breath alcohol program. It is unduly burdensome and judicially inefficient to have any process whereby counsel or that of a retained breath test scientist to travel to West Virginia State Police headquarters in Charleston, West Virginia to “read” said manuals. The manuals can easily be produced and disseminated.

Some state agencies, such as the states of South Carolina and Washington, are posting this data, associated manuals and information on-line, in a retrievable format onto a website for public access. These state agencies also include a self authentication stamp for attorneys to use when utilizing the data in court cases. Other EC/IR II jurisdictions are providing this breath test discovery as matter of routine course.

Open and transparent governing we call it. The fight to so achieve in West Virginia continues.

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Harley Wagner

Harley Wagner

Recently Named Best DUI attorney in West Virginia There is hope after a DUI arrest. If you are looking for somewhere to turn for help with your WV DUI, look no further. DUI lawyer Harley Wagner is here to put the pieces of your life back together. Speak with him today about how to build a defense for your DUI case. View Full Bio

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